The exploited yet legally underappreciated apparel domain of indigenous communities: Tracing WIPO's efforts and ongoing challenges

• Published date: 01 July 2023
• Author: Niharika Salar,Shrudula Murthy
• Date: 01 July 2023
• DOI: http://doi.org/10.1111/jwip.12266

Received: 31 January 2023

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Accepted: 8 February 2023

DOI: 10.1111/jwip.12266

NOTE

The exploited yet legally underappreciated

apparel domain of indigenous communities:

Tracing WIPO's efforts and ongoing challenges

Niharika Salar |Shrudula Murthy

NALSAR University of Law, Hyderabad, India

Correspondence

Shrudula Murthy, NALSAR University of Law,

Hyderabad, India.

Email: shrudulamurthy@gmail.com

Abstract

The International Intellectual Property Rights (IPR) regime

currently endeavours to protect complex subject matters

ranging from art and fashion to software. This paper will

specifically examine the key international instruments

(issued by the World Intellectual Property Organization

[WIPO] and those applicable in the European Union)

governing the apparel industry. To that end, it will analyse

the different instruments governing the sector and will also

highlight in brief the various initiatives undertaken by the

WIPO towards facilitating and harmonising the process of

protecting the different facets of the fashion sector.

Further, we will look at the current statistics available on

the different databases and will gauge how the sector has

fared. Over the course of the paper, the authors will

highlight the gap in the protection granted to garments or

cloth weaving techniques belonging to indigenous commu-

nities (such fashion articles fall under the broad domain of

the traditional cultural expression of a community) ranging

from handlooms and handicrafts to unique textile and

design prints, motifs, symbols, accessories, and so on, as

compared to international fashion corporations. The exist-

ing gaps would be analysed in the current international IPR

regime which makes it challenging to apply the current

norms and standards of IP to elements of traditional and

cultural clothing of indigenous communities. It will locate a

few examples of communities utilising IPR to protect and

J World Intellect Prop. 2023;26:312–327.wileyonlinelibrary.com/journal/jwip312

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© 2023 John Wiley & Sons Ltd.

promote their cultural heritage in the garment industry.

Continuing on this tangent, the paper will look at how the

IP regime can be adequately expanded to incorporate the

needs and interests of indigenous communities and

promote their fashion and culture. The final part of the

paper will be conclusive in nature.

KEYWORDS

garments, geographic indication and textiles, handicraft,

intellectual property, trademark law, traditional cultural expression

1|INTRODUCING THE PROBLEM

The fashion industry has played an integral role in defining the inherent expression and identity of individuals and

communities on a global scale.

1

Elements such as clothing, accessories, footwear, symbols, and textiles form the

crux of an individual's identity, often inspired by their communities' cultural history. Individuals, in turn, are part of a

larger cultural community, and there is a constant exchange of ideas and inspiration between members of these

communities.

2

Globalisation and the free flow of information have enabled the seamless transmission of global

fashion trends across the world. Not just individuals, but different fashion companies and organisations have carved

out a niche for their identity because of the popularity of their unique products across different markets.

Consumers can now associate unique patterns, designs, and fabrics with a specific brand or company.

3

The intellectual property (IP) regime plays a fundamental role in the development of the garment industry

specifically. However, as they stand today, international IP laws do not recognise such fashion designs as exclusive

subject matter,

4

but adopt a fragmented approach to protecting various aspects of fashion as a creative industry.

This fragmented approach has faced several critiques and drawbacks over the past few years.

5

Before advancing on the kinds of protection available, it is worth scoping a growing body of scholarship

advocating against IP protection in fashion designs. Christopher Sprigman and Kal Raustiala, renowned IP scholars

in their seminal 2009 work

6

(which they continue to build on

7

) argued for the phenomenon of reducing exclusive

high‐end fashion to knockoffs. They argue that knockoffs cause customers of high‐end fashion brands to buy the

next ‘new look’from the said brands, to regain the valuable social status conferred by wearing a high‐fashion

garment. By pushing the trend cycle forward, key players in the fashion industry are benefitted as knockoffs

increase the popularity of the brand and also encourage more sales. However, with expansive protection being

granted to creative persons in different fields ranging from music

8

to art

9

—it seems difficult to justify the seemingly

low level of protection for the fashion industry.

10

The argument advanced by those who are apprehensive of

granting exclusive IP protection for the fashion industry often overlook the smaller players in the field.

11

Further,

this protection is especially important, given the increasing misuse of traditional cultural expression (TCE) by larger

fashion corporations.

12

Apparels, is a cultural phenomenon that, among other things, finds its roots in indigenous communities and

traditional art which acts as cultural representation or means of expression for different communities.

13

There have

been increasing instances of these articles making a comeback in the mainstream fashion industry, thus making it

important to look into how different facets of the IP regime protect them.

14

The central debate engaging IP scholars

concerns whether traditional art and culture can—or should—be subject to legal protection that allows for its

exclusion from the public domain.

15

Some scholars argue that granting legal protection to traditional knowledge and

culture, either under IP law or sui generis protection, is vital to recognise and respect the heritage and values of

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